Union of India v. The Registrar Central Administrative Tribunal Chennai – 1042 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 31.3.2008Coram:The Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW. P. No. 8131 of 2007andM.P. No. 1 of 20071.Union of IndiaRep. by the Chief Personnel Officer Southern RailwayHeadquarters OfficeChennai2.The Divisional Personnel OfficerThiruchirapalli DivisionSouthern RailwayTiruchirapalli.. Petitionersvs.1.The RegistrarCentral Administrative TribunalChennai – 1042.S. Kannan3.D. Rajkumar4.S. Raj Ganesh5.R. Chandrasekaran6.B. Vaidooriam7.M. Ulaganathan8.D. Baburajendran9.S. Karunanidhi10.G. Murugesan11.V. Keerthimohan12.P. Dakshinamurthy13.T. Perumalraj14.S. Janakiraman15.K. Manivannan16.T. Rajagopal17.M. Abdul Rahiman18.K. Rozario19.P. Manivelu20.Manojkumaramarkam21.Jagabandhuswain https://hcservices.ecourts.gov.in/hcservices/

22.Ompal Singh23.Deep Narayan Deogan24.Gorelal Neetam25.Proful Bnenedict Kullu26.Viswanath Malick27.Dagrat Barla... Respondents[RR17 to 27 given up vide order dated 25.01.2008]Petition under Article 226 of the Constitution of India prayingto issue a writ of Certiorari calling for the records on the file ofthe Tribunal pertaining to the order dated 17.11.2006 passed in O.A.No. 832 of 2005 and quash the same. For Petitioner : Mr. Su. SrinivasanFor RR 2-12, 14 & 15: Mr. A. ThirumurthyFor R16: No appearanceRR17 to 27: given up as per endorsement dated 25.01.2008ORDER(Order of the Court was made by K. CHANDRU, J.)Heard the arguments of Mr. Su. Srinivasan, learned counselappearing for the petitioners and Mr. A. Thirumurthy, learned counselappearing for the respondents 2 to 12, 14 and 15 and perused therecords.2.Challenging the order of the Central Administrative Tribunal[for short, 'CAT'] dated 17.11.2006 passed in O.A. No. 832 of 2005,the Union of India represented by the Chief Personnel Officer and theDivisional Personnel Officer, Tiruchirapalli Division, SouthernRailway have filed the present writ petition.3.The writ petition was admitted on 06.3.2007 and interim staywas granted on the same day. Subsequently, when the matter came upon 25.01.2008, Mr. Su. Srinivasan, learned Additional CentralGovernment Standing Counsel informed this Court that as they are notseeking any relief against the respondents 17 to 27 and as they wereonly proforma parties and since service on them is not completed, heis giving up respondents 17 to 27 as being parties to the writpetition. In respect of Respondent No.16, they have taken outservice privately and through the Department. 4.The respondents 2 to 16, who were working as DieselAssistants in the Diesel Locoshed, Golden Rock, TiruchirappalliDivision filed Original Application being O.A. No. 832 of 2005seeking to challenge the provisional seniority list dated 19.12.2003prepared by the petitioner Railways. They also sought for a further https://hcservices.ecourts.gov.in/hcservices/ direction to reassign the seniority of the contesting respondents byreckoning the date of issue of the transfer orders, viz., 07.12.2002and 20.11.2002, as the crucial dates instead of the actual date ofjoining at the Tiruchirappalli Division. 5.The contesting respondents joined as Kalasis in theTiruchirappalli Division of the Railways during the period 1980 and1989. They were working as Technician Grade III / Kalasi Helpers.They went through the process of selection to the post of DieselAssistants in the year 1998 and they were selected and empanelled forthe said post. In the order of preference, they gave theTiruchirappalli Division as their first choice. But contrary totheir preference, the contesting respondents 2 to 6 were posted toChennai Division and the other contesting respondents were posted toPalakkad Division. When they protested against the said posting,they were given the assurance that as soon as vacancies arise inTiruchirappalli Division, they will be retransferred to the place oftheir original preference. Accordingly, these respondents joinedChennai and Palakkad during May and October 1999. They were alsocontinuously petitioning to the petitioner Railways and got theirnames registered for request transfer to the Tiruchirappalli Divisionas such transfers are permissible in terms of Rule 226 of the IndianRailway Establishment Manuel (IREM). In such cases, the seniorityof the Railway servants who were transferred on their requests, willbe kept below the last person holing the post in the confirmed,temporary or officiating capacity. The requests of the contestingrespondents were considered by the first petitioner and altogether 30Diesel Assistants were retransferred to Tiruchirappalli on request byan order dated 07.11.2002. 6.By another order dated 20.11.2002, the second petitionertransferred six employees including three contesting respondents tothe Tiruchirappalli Division. While employees, who weretransferred from Bengalaru Division, were relieved immediately fromthe Divisional Headquarters and they were able to report for duty atTiruchirappalli at once, the respondents 2 to 6 from Chennai Divisionwere relieved from duty only on 19.01.2003 due to administrativedelay and they joined only on 20.01.2003 at Tiruchirappalli Division.Likewise, respondents 2 to 16 were relieved from Palakkad Division on13.4.2003 due to administrative delay. It is noted that oneBangaru Gupta from Bengalaru, who was relieved on 18.12.2002 itself,joined Tiruchirappalli on 19.12.2002. Further, during theintervening period, three employees were promoted as DieselAssistants under the promotional quota, had also joined the post on18.01.2003 at Tiruchirappalli. A further batch of eight candidatesrecruited from the open market by the Railway Recruitment Board hadalso joined their posts between 19.01.2003 and 21.01.2003. 7.Finally, when during December 2003, when the provisionalseniority list of Diesel Assistants in Tiruchirappalli Division was https://hcservices.ecourts.gov.in/hcservices/ published, the aforesaid Bangaru Gupta, the three promotional quotaemployees as well as eight direct recruits were placed above the nameof the contesting respondents as serial Nos. 146 to 157. Those whocame with the delayed relief, were shown in the seniority list in alower position in Serial Nos. 158 to 172. The contestingrespondents sent individual representations dated 19.01.2004 to thepetitioners to rectify the anomaly. They pleaded that once theHeadquarters orders transfers, the said date must be taken intoaccount for reckoning the date of seniority and not the date ofjoining which may vary from Division to Division depending upon therelieving orders given by the different Divisional Officers. Inthe absence of any Rules, the proper construction should be the dateof order and not the date of relief. Any other construction of therule of seniority will result in juniors becoming seniors due tofortuitous circumstances. 8.A reply statement dated September 2006 was filed by thepetitioner Railways justifying their action. 9.While it is the case of the contesting respondents that theyhave no objection in becoming juniors to the existing confirmed,temporary and officiating Railway servants in the relevant grade interms of Rule 312 of the IREM, but on no account, there should notlose their seniority among the retransferred Diesel Assistants. TheCAT, on considering the entire issue, allowed the O.A. by its orderdated 17.11.2006. In paragraphs 12 and 13, it had observed asfollows:-"12.From the above it is evident that the seniority onrequests transfer has to be with reference to the dateof the order in which the transfer is issued and notwith reference to the date of joining, which is boundto be different for different persons in the sameorder. Thus the meaning of the word "existing"railway servants in para 312 of the IREM has to be asthose existing on the date on which the order is issuedand not as on the different dates in which theapplicants could actually join in keeping with theadministrative interest they had to take care of.Also the respondents cannot cite differentcommunications at various levels to deny theapplicants the benefit of approval of their transfersas on 7.11.2002 and 20.11.2002 and those two dates onwhich the first order got issued should be taken as therelevant date to reckon with reference to the condition'existing' staff in seniority list.13.Therefore, the respondents plea that 'existing'refers to date of joining and not date of the issue ofthe order, is not sustainable being illogical, andunjust and hence the provisional seniority list dated https://hcservices.ecourts.gov.in/hcservices/

19.12.2003 issued on the above interpretation is setaside in so far as the applicants are concerned.The respondents are directed to recast the seniority byplacing the applicants in the seniority list as on thedate of the issue of their order namely 7.11.2002 and20.11.2002 and complete this exercise within a periodof two months from the date of receipt of a copy ofthis order."While doing so, the CAT also relied upon the practice in the Postaland Telegraph Department wherein the date of the transfer order wasreckoned as the basis for fixing seniority. 10.However, Mr. Su. Srinivasan, learned ACGSC contended that itwas wrong to rely upon the rules relating to the P&T service. Healso submitted that a ruling of the Railway Ministry had been givenunder Rule 226 of IREM which alone is binding. He further submittedthat once a person joins at the transferred place, he will be one,who will be an existing confirmed, temporary or officiating railwayservant in terms of Rule 312 and, therefore, he submitted that thedecision of the CAT must be interfered with.11.Having given our anxious consideration to the rivalsubmissions made by the learned counsel for the parties, we are ofthe view that all the retransferred Diesel Assistants will form partof the same class. Merely because the station in which they wereposted which delayed the relieving should not determine theirrelative seniority. As can be seen in the present case, while theBengalaru Division has no difficulty in relieving one Bangaru Guptawhereas the Palakkad and Chennai Divisions have retained thecontesting respondents without giving them relief inspite of theHeadquarters' ordering their retransfer on the same day. If thecontention raised by the learned counsel for the Railways isaccepted, then the seniority will vary for each person dependingupon the date of relief given by each Division. Instead ofimplementing the Headquarters' orders of retransfer on its letter andspirit, it is regrettable that the Railways should decide the fate ofseniority of the individuals depending upon the whims and fancies ofthe Divisional Officers granting relieving orders to individuals.We do not think that the CAT has committed any grave error in comingto the conclusion as disclosed in the order under challenge. The CATrelying upon, as a guideline, the rule position in the Postal andTelegraph Department also held that no exception can be made. 12.Further, we are also constrained to observe that in thematter of inter se seniority, when no private individuals aggrievedby the order have come before this Court, the Railways should takeupon itself the task of challenging the order of the CAT. In thereasoning laid down by the CAT, there is no principle of law involvedwhich may affect the Railways in its future action. On thecontrary, the CAT had only expressed an equitable principle which can https://hcservices.ecourts.gov.in/hcservices/ operate for all seasons without leaving it to the vagaries ofindividual Divisional Officers in determining the seniority ofindividuals who were given the benefit of retransfer by a singleorder of the Headquarters issued on the same day.13.In the light of the above, the writ petition is misconceivedan devoid of merits. Accordingly, it stands dismissed. However,there will be no order as to costs. Connected MiscellaneousPetition is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.GriTo1. The Registrar Central Administrative Tribunal Chennai – 1042.The Chief Personnel Office,Southern Railway Headquarters Office,Chennai.3.The Divisional Personnel Officer Tiruchirappalli Division,Southern Railway, Tiruchirapalli+ 1 CC To Mr.A.Thirumurthy, Advocate SR NO.17988+ 1 CC To Mr.Su. Srinivasan, Advocate SR NO.18996 W. P. No. 8131 of 2007BV(CO)SRA(13/06/2008)